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pleadings in an action, whether founded on contract or tort, show 
that injury has been done to a man's personal estate as distinguished 
from his person or reputation, the action, in case of the death of 
the plaintiff survives to and may be continued by his personal 
representative. Under this rule an action to recover money paid 
by the plaintiff for shares of a company which he had been induced 
to take by the fraudulent representations of the defendant, was held 
to survive his death. The English statute of 3 & 4 Wm. IV., c. 
42, provides that an action may be maintained against the executors 
or administrators of any person deceased " for any wrong committed 
in his lifetime to another in respect to his property, real or per- 
sonal." The word "wrong" in this statute has been construed to 
mean tort, as that word is known in the law. Thus, in Morgan v. 
Baney, 6 H. & N. 265, the action was in assumpsit against the 
executors of an innkeeper for breach of his implied contract to 
keep safely the goods of a guest. It was objected that the law did 
not imply a contract under the circumstances, but the court said : 
" It is not, however, necessary to determine this, if this plaintiff 
elects to amend, which he may do and we think successfully, because 
it seems to us, notwithstanding the ingenious argument of Mr. Phinn, 
that if the claim against the defendant is for a tort it is for a wrong 
committed within the statute." And see Powell v. Bees, 7 Ad. & 
Ell. 426. 

John D. Lawson. 

(To be continued.) 


House of Lords. 



A firm of two partners dissolved ; one retired and the other carried on the busi- 
ness with a new partner under the same style. A customer of the old firm, sold 
and delivered goods to the new firm after the change, but without notice of it. 
After receiving notice he sued the new firm for the price of the goods, and upon 
their bankruptcy, proved against their estate, and afterwards brought an action for 
the price against the late partner : Held, reversing the decision of the Court of 
Appeal, that the liability of the late partner was a liability by estoppel only, and 
not jointly with the members of the new firm ; that the customer might, at bis 
option, have sued the late partner or the members of the new firm, but could not sue 
all three together ; and that having elected to sue the new firm, he could not after- 
wards sue the late partner. 


Appeal from a judgment of the Court of Appeal. 

The action was brought by the respondent against the appellant 
for the price of goods sold in January and delivered in February 
1878, to a firm trading under the name of W. H. Rogers & Co., 
of which firm the appellant was a member until July 1877. On the 
trial before Denman, J., at Guildhall, on the 30th of May 1879, 
the facts were proved which are stated in the judgment of the 
Lord Chancellor, and it was agreed that the only question to be 
submitted to the jury should be the date on which the respondent 
first received notice of the appellant's retirement from the firm, 
and that all the other questions arising in the action should be 
tried by Denman, J., without a jury. The jury found that the 
respondent first received notice on the 25th of February 1878, 
after the goods had been delivered. Denman, J., gave judgment 
for the appellant with costs. The Court of Appeal [Lord Coler- 
idge, C. J., and Brett and Baggallay, L. JJ., doubting], 
reversed this and gave judgment for the respondent for 45?. 2s. Zd. 
with costs. 

Forbes, Q. C, and Gf. E. S. Fryer, for the appellant. 
Finlay, Q. C, and 0. A. Russell, for the respondent. 

Lord Selborne, L. C. — My lords, the facts in the case are few 
and simple, but they raise a question which may be of some general 
importance, and which seems, from what has been stated at the 
bar, to be as yet undetermined by authority. 

There was a firm carrying on business, under the name of W. 
H. Rogers & Co., in Manchester, with which the plaintiff, Mr. 
Jardine, had dealings. It consisted at first of two partners, the 
defendant, Mr. Scarf, and Mr. "W. H. Rogers. On the 27th of 
July 1877, those two persons dissolved the partnership between 
them, and another person named Beech, joined Mr. Rogers, and 
they carried on the same business, under the same name and at 
the same place, from that time forward. Of this, the plaintiff, 
Mr. Jardine, knew nothing until the 25th of February 1878. In 
the meantime, in January 1878, goods were ordered from him on 
behalf of the firm carrying on business under the name of W. H. 
Rogers & Co. According to the ordinary course of business — 
which, I presume, was the same as had prevailed before the disso- 


lution of partnership in the previous month of July — goods were 
ordered of the plaintiff, and were delivered by him in February 
1878, at the place of business of the firm. At the time when they 
were ordered, and at the time when they were delivered, he was 
ignorant of the dissolution of partnership, which had, in fact, taken 
place, and of the fact that the business was then being carried on, 
not by Mr. Scarf and Mr. Rogers, but by Mr. Rogers and Mr. 
Beech. He became aware of those facts upon the 25th of Feb- 
ruary 1878, on receiving a circular, dated on the 21st of the same 
month of February, by which notice was given to him, and by 
which the date of the dissolution of partnership was mentioned as 
having taken place-on the 27th of July 1877 ; and it was at the 
same time stated that all debts owing to or by the old firm would 
be received and paid by Mr. Rogers alone, who would continue to 
carry on the business as theretofore, in partnership with Mr. 
Beech, under the same style and firm. 

The plaintiff afterwards supplied other goods to the new firm. 
He made no break in the accounts in his books. He rendered an 
account consisting of the old and new debts — by " the old," I 
mean the debt which had been incurred before he became aware 
of the dissolution of partnership; by "the new," I mean that 
which had been incurred afterwards — he rendered that account to 
the new firm. He had some correspondence with them, looking 
to them as the persons from whom he might expect payment of the 
whole of the demand ; and they, on the other hand, replied in the 
correspondence as being prepared to liquidate the debt ; they made 
some payment on account, and they gave a check for the balance 
on the 22d of July 1878, which was post-dated a week. That 
check, when presented, was dishonored ; and on the 7th of August 
1878, the plaintiff commenced an action against Rogers and Beech 
for the balance, which included the present demand ; that is to 
say, included the demand for the goods which had been ordered in 
January and supplied in February, before notice of the dissolution 
of the partnership. That action was stopped, not by any discon- 
tinuance on the plaintiff 's part, but by the failure of the new firm, 
which went into liquidation on the 16th of August 1878. Under 
this liquidation, the plaintiff proved as a creditor of the new firm, 
by an affidavit in which he swore that Rogers and Beech were 
justly and truly indebted to him in the sum of 125Z. 19s. Id., for 


goods sold and delivered by him to Rogers and Beech, that sum 
including the goods in question. 

Your lordships, I think, must take it upon the facts as they 
appear, that no objection was made to that proof; that it was 
never retracted ; that it was admitted ; and although it does not 
appear upon proceedings that a dividend has been paid under it, 
yet, at all events, for anything that your lordships know to the 
contrary, that may be the case, or may be the case hereafter. 

Now, after the liquidation and after the proof, the present action 
was brought by the plaintiff against Mr. Scarf, who, in point of 
fact, had ceased to be a partner in July 1877 ; who, in point of 
fact, had given no authority to order the goods in question upon 
his credit, and who, as between himself and the persons who did 
order the goods, was at the time when they were supplied a 
stranger to the business. On the other hand, the persons who 
actually ordered these goods, and to whom they were sup- 
plied, were Rogers and Beech. They were the persons alone 
interested in the business, and they were undoubtedly, upon,* ordi- 
nary principles, liable for what they so ordered. The defendant 
also might be held liable — about that there can be no doubt ; 
because the principle of law which is stated in Lindley on Partner- 
ship, vol. 1, p. 429, 3d ed., is incontrovertible, namely, that 
" where an ostensible partner retires, or when a partnership 
between several known partners is dissolved, those who dealt with 
the firm before a change took place, are entitled to assume, until 
they have notice to the contrary, that no change has occurred ;" 
and the principle on which they are entitled to assume it is that 
of the estoppel of a person who has accredited another as his 
known agent from denying that agency at a subsequent time as 
against the persons to whom he has accredited him, by reason of 
any secret revocation. Of course, in partnership there is agency, 
one partner is agent for another, and in the case of those who, 
under the direction of the partners for the time being, carry on the 
business according to the ordinary course, where a man has estab- 
lished such an agency, and has held it out to others, they have a 
right to assume that it continues until they have notice to the 

There was, therefore, in this undoubtedly a state of circum- 
stances which would have entitled the plaintiff, if he had thought 
fit, to hold Mr. Scarf liable, the credit being given to him and to 


Rogers, there being no knowledge on the part of the plaintiff of 
the dissolution of partnership ; no knowledge of any revocation of 
the agency at the time when the goods were delivered. On the 
other hand, if you look not to the estoppel but to the fact, the plain- 
tiff was entitled to hold the persons who actually gave the order 
and received the goods, and were interested in the profit and loss 
of the firm which ordered them, liable to him ; those persons being 
not Scarf, Rogers and Beech, or Scarf and Rogers, but Rogers 
and Beech alone. 

Now it appears to me that the real question which your lordships 
have to determine, is not as it was treated in the courts below — in, 
I think, both courts below — namely, the question of what is called 
"novation ;" but it is this : whether in that state of circumstances 
there was a concurrent joint liability of the three persons, Scarf, 
Rogers and Beech, upon the principles which I have stated ; or 
whether the plaintiff had a right to make his choice whether he 
would sue those who were liable by estoppel, or sue those who 
were liable upon facts. Put it as I can I am unable to understand 
how there could have been a joint liability of the three. The two 
principles are not capable of being brought into play together ; you 
cannot at once rely upon estoppel and set up facts ; and if the 
estoppel makes A. and B. liable, and the facts make B. and C. 
liable, neither the estoppel nor the facts, nor any combination of 
the two can possibly make A. B. and G. all liable jointly. 

Therefore it appears to me that if the plaintiff chose to go 
upon the facts, and to make the persons who actually ordered and 
got the benefit of the goods his debtors (which he had a plain and 
certain right to do), he entirely disavowed the estoppel and could 
no longer set it up. If, on the other hand, he chose to go upon 
the estoppel, then Beech, being a stranger to the liability upon 
that footing, he could only sue Scarf and Rogers. One way of 
testing it would be by inquiring what was the rule under the old 
system of pleading. If at that time Scarf and Rogers had been 
sued, could they have pleaded in abatement that Beech ought also 
to be joined as being also liable ; I think most clearly they could 
not. And upon the other hand, if Rogers and Beech had been 
sued, still more impossible would it have been for them to plead in 
abatement that Scarf ought also to be joined, for he was neither a 
partner when the goods were ordered, nor as between him and 
themselves could any liability possibly have attached to him. 


It seems to me, therefore, that the plaintiff was necessarily put 
to his election. He might hold either Rogers and Scarf, or 
Rogers and Beech, liable ; he could not hold Rogers, Scarf and 
Beech all liable together. That makes it unnecessary for me to 
say much upon the question of novation, except that if your lord- 
ships should differ from the Court of Appeal in this case, you will 
have the satisfaction of feeling that you do so on grounds which do 
not seem to have been clearly or fully presented, if they were 
presented at all, to the Court of Appeal. In the court of first 
instance the case was treated really as one of what is called "nova- 
tion," which, as I understand it, means this — the term being 
derived from the civil law — that there being a contract in exist- 
ence, some new contract is substituted for it, either between the 
same parties (for that might be) or between different parties ; the 
consideration mutually being the discharge of the old contract. 
A common instance of it in partnership cases is where, upon the 
dissolution of a partnership the persons who are going to continue 
in business agree and undertake, as between themselves and the 
retiring partner, that they will assume and discharge the whole 
liabilities of the business, usually taking over, the assets ; and if in 
that case they give notice of that arrangement to a creditor, and 
ask for his accession to it, there becomes a contract between the 
creditor who accedes and the new firm, to the effect that he will 
accept their liability instead of the old liability, and on the other 
hand that they promise to pay him for that consideration. 

Now if this case had rested upon that ground (on which it 
appears to have been put in the court of first instance), I could 
not myself have agreed in the decision at which the court of first 
instance arrived ; because there is really only one act done upon 
which a serious argument, as it seems to me, could be found in 
favor of novation, if the circumstances had required that the case 
should be put upon that ground. I mean the giving of the check, 
which I have already mentioned, on the 22d of July 1878, by the 
new firm. Down to that time it was, as it seems to me, merely in 
the natural and ordinary course of things, that when the notice of 
dissolution referred to Mr. Rogers (who was continuing to carry 
on the business of that firm with Beech), as the person who would 
receive and pay all debts owing to or by the old firm, either Mr. 
Rogers or his firm should act in the liquidation of the affairs and 
debts of the old concern ; and the mere corresponding with them, 

Vol. XXXI.— 47 


the mere sending in the accounts to them, would not, as it seems 
to me, make Beech liable unless he did something to make him- 
self liable beyond carrying on that kind of correspondence. Then, 
upon the other hand, is there sufficient evidence of the intention 
which would be necessary on the part of the plaintiff to relinquish 
these original debtors ? The fact of this check being given, which 
as I have said is the only thing which can be relied upon as 
showing that Beech was willing to make himself liable, is perfectly 
consistent with the plaintiff's not relinquishing the original 
debtors. If it results in payment he is perfectly entitled to take 
it. If it does not result in payment it will not fulfil its original 
object. It did not result in payment and the action followed. 
The proof in bankruptcy afterwards being in invitas, though it 
might be some evidence of the intention of the plaintiff to get what 
he could out of Rogers and Beech, yet certainly would be no 
evidence of any accession on the part of Beech to the liability, 
which was not upon him at all. 

I therefore should not have differed from the opinion of the 
Court of Appeal if I had thought (as the Court of Appeal seems to 
have treated it) that the case depended upon what is called the doc- 
trine of novation. I am inclined to say that the facts which have 
taken place were susceptible of an interpretation consistent with 
an intention on the part of the plaintiff to retain his original 
debtors, at all events at the time of action brought, and that on 
the other hand there was nothing to make Beech a debtor if he had 
not been so before. But as Beech was really a debtor, the whole 
doctrine of novation disappears from the case, and the question 
resolves itself into that which I originally stated, namely, whether 
there was an intention on the part of the plaintiff to hold the three 
persons liable or only two, and if two, whether it is possible, after 
choosing to hold those who actually gave the order and received 
the goods liable, and proceeding against them as debtors in such a 
way as to amount to a distinct election to take their liability, to 
retract that and to fall back upon the liability which, on a different 
principle, might have been asserted against the other two, that is 
to say, against Scarf and Rogers, to the exclusion of Beech. I 
think that the plaintiff was bound by his election, and that after 
approbating the liability according to the facts, and taking as his 
debtors those who had actually given the order, he could not, when 
it suited his convenience, retract it, reprobate it, and go back upon 


the liability, by estoppel, of the man who never gave the order 
at all. 

Then did the plaintiff do that which was, and ought to be held 
as, an election of liability. I think that he did, with full knowl- 
edge of all the facts, from the 25th of February. He not only 
carried on the correspondence to which I have referred — which 
might have been entirely consistent with his reserving his right to 
elect ; he not only received the check — upon which I am disposed 
to make the observation that taking it would not have been a con- 
clusive election — but he brought his action against Rogers and 
Beech ; and not only did he bring his action, but when the action 
was stopped by the liquidation, he carried in his proof, swearing 
that they were justly and truly indebted to him for the goods as 
sold and delivered by him to them. Rogers and Beech were in 
point of fact the debtors, and he had the benefit of that, which 
really (without going into any technical distinctions), for this pur- 
pose appears to me to be a sufficient ground of judgment. I do 
not think it necessary to go into any of the cases which have been 
mentioned, because I think that the principle is perfectly distinct. 
The case, which was relied upon by the respondent, of Curtis v. 
Williamson, Law Rep., 10 Q. B. 57, simply held the mere act of 
making and filing in bankruptcy an affidavit of the kind which 
was made was not one as to which the party would have no locus 
penitentice under any circumstances where he had been desirous, 
when he had fully considered the matter, of withdrawing it before 
it was put upon file ; and nothing was done, so far as appears, after 
it was put upon the file. There was nothing to bind him to his 
election except that inadvertent and (at the time when it was done) 
unintentional act of his agent; and the court were quite right 
in holding that that ought not to be regarded as an election by 

I need not refer particularly to the facts of Bilborough v. 
Holmes, 5 Ch. D. 255, but a proof under circumstances similar to 
the present was held, upon the principle of election, to bind the 
party who made it. In Bottomley v. Nuttall, 5 C. B. (N. S.) 
122 ; 28 L. J. (C. P.) 110, an acceptance had been given which 
was evidence of a successive obligation, and proof of it would by 
no means extinguish or destroy any right which the party might 
have upon the original debt and the original consideration. 

There is, therefore, as frankly admitted at the bar, no direct 



authority upon this point. Your lordships are obliged to deter- 
mine it upon principle; and on principle I think your lord- 
ships ought to hold that the plaintiff -was put to his election, that 
he made it when he brought the action and proved in the liquida- 
tion, and that he cannot now, consistently with the election which 
he has made, hold Scarf liable. I therefore move your lordships, 
that the order under appeal be reversed, which will have the effect 
of restoring the judgment of the court of first instance ; and that 
the defendant (the appellant here) have his cost in the Court of 
Appeal and in this House. 

Lords Blackburn, Watson and Bramwell, also delivered 
concurring opinions. 

With the exception of the cases of the 
death of a partner, the bankruptcy of 
the firm, and the retirement of a dor- 
mant partner, the general rule is that 
the agency of each partner, and his con- 
sequent power to bind his copartners 
within the scope of the copartnership 
business, can only be effectually deter- 
mined by notice of its revocation. If a 
partnership is dissolved, or one of the 
known members retires from the firm, 
until the dissolution or retirement is 
duly notified, the power of each to bind 
the rest remains in full force, although 
as between the partners themselves a 
dissolution or retirement is a revocation 
of the authority of each to act for the 
others : 1 Lind. on Part. (Ewell's ed.) 
*404-407, and notes, where a large 
collection of cases will be found. So, it 
has been held, that a partner who re- 
tires without giving sufficient notice, is 
liable for torts committed subsequently 
to his retirement by his late copartners or 
their agents : Stahtes v. Eley, 1 Car. & 
P. 614. Even where a partner has 
retired and notified his retirement, if he 
nevertheless continues to hold himself 
out as a partner, he will continue liable 
as a member of the firm. A firm, not- 
withstanding its dissolution, is also gen- 
erally considered as existing so far as 
may be necessary for the winding up of 

its business : 1 Lind. on Part. *409-41 1 . 
As to the notice of the dissolution, pub- 
lic notice by advertisement is sufficient 
both as against all who can be proved 
to have seen it, and as to all who have 
had no dealings with the old firm, 
whether they saw it or not ; but as to 
old customers of the firm actual notice is 
requisite. This applies only to ostensi- 
ble partners, for when a dormant partner 
retires, he need give no notice of his 
retirement in order to relieve himself 
from liability as to acts done after his 
retirement. As to persons, however, 
having knowledge that he is a partner, 
he owes the same duty as to giving 
notice as if he were an ostensible part- 
ner. See, generally, 1 Lind. on Part. 
*405-417, and notes. 

In the principal case there was no 
doubt as to the liability of the new 
firm, for the reason that the contract 
was, in fact, made with it. Had the 
remedy been first sought against the 
old firm, there could also have been, on 
well-settled principles, no doubt of the 
liability of the retiring member of that 
firm. The point actually decided, that 
after having elected to hold the new 
firm, the creditor could not also pursue 
the retiring member, is both new and 
important. This question does not ap- 
pear ever to have been decided in Eng- 


land prior to this case ; and, from snch C, are, on account of want of space, 

examination as we have been able to omitted] — are so clear and conclusive 

make, no case involving the point has as to render the citation of authorities 

ever been reported in this country. The almost superfluous, and there would 

reasons advanced, however, by the seem to be no reasonable doubt as to 

learned judges, whose opinions are re- the correctness of their judgment, 
ported — [the opinions of Lords Black- Mabshail D. Ewelx. 

burn, "Watson and Bramwell, who Chicago, 
concurred with Lord Sblborne, L. 


Supreme Court of Iowa. 

An act of the state legislature, whose object and purpose is to control and regulate 
the shipment of freight to points in other states, is in violation of article 1, sect. 8, 
of the Constitution of the United States, as being legislation on interstate commerce, 
a subject which is in its nature national, and requiring the exclusive legislation of 

An interstate contract of shipment, entered into by a common carrier, is an 
entire contract, and the laws of the state wherein it is made, so far as they attempt 
to regulate interstate commerce, do not enter into it as a part of the contract, being 
repugnant to the Federal Constitution [Beck, J., dissenting]. 

A contract is subject to the laws of the state wherein it is made and which are 
applicable thereto. 

A state may regulate charges on shipments of goods, by statutes not in conflict 
with the Constitution of the United States as regulations of commerce, and in the 
absence of any legislation by Congress upon the subject, such laws cannot be regarded 
as an encroachment on the anthority of the general government. 

Such regulations of commerce only as impose burdens and restrictions are for- 
bidden to the state by the Constitution of the United States, but laws which aid in 
securing expeditious and cheap transportation, and which remove burdens, impedi- 
ments and restrictions imposed on commerce by common carriers through unneces- 
sary delays, and by their unreasonable and unjust exactions and discriminating 
charges, are not regulations of commerce within the contemplation of the Constitution 
of the United States. 

Appeal from Hardin Circuit Court. 

This is an action to recover certain alleged excessive freight 
charges paid by the plaintiff to the defendant for transporting 
grain from Ackley, Iowa, to Chicago, Illinois. The cause was 
tried in the court below without a jury, and upon an agreement as